Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

We wrote recently about Sherrod v. Breitbart and O’Connor, the case argued last month in the D.C. Circuit that asks the Court to decide, among other questions, whether the District of Columbia’s anti-SLAPP statute should be applied in federal court.

The federal courts of appeals that have analyzed this question have all agreed that state anti-SLAPP statutes should be applied—at least to some degree—in federal court.  Those cases point to the Ninth Circuit’s 1999 decision in Newsham v. Lockheed Missiles & Space Co., in which the Court held that California’s anti-SLAPP law was substantive, not procedural, and therefore should be applied by a federal court.

The Ninth Circuit recently issued an opinion in Makaeff v. Trump University that faithfully followed the Court’s precedent in Newsham, applying California’s anti-SLAPP statute to strike a counterclaim claim brought in federal court by Trump University against a woman who had filed a class-action claim against the program founded by Donald Trump to offer real estate investment seminars and training programs.

The bulk of the Court’s opinion focused on whether Trump University was a “public figure,” as required by California’s anti-SLAPP law.  The Court reversed the trial court, holding that it was a “limited public figure.”

Perhaps more interesting, however, were two concurrences written by Judge Kozinski and Judge Paez arguing that Newsham was wrongly decided and that state anti-SLAPP statutes should not apply in federal court.  Both concurrences argue that anti-SLAPP statutes are, in fact, largely procedural, and therefore should not be applied in federal court to supplant federal procedural rules.  Judge Kozinski, known for his sharp writing, called Newsham “a big mistake” that had been “foolishly followed” by the First Circuit and Fifth Circuit.  Judge Kozinski and Judge Paez clearly want the Ninth Circuit to re-examine Newsham en banc.

Judge Kozinski is an influential jurist across the country, and one cannot help but wonder whether his concurrence at this point was also intended to send a message to the D.C. Circuit as it considers Sherrod.  Of course, if the D.C. Circuit were to hold that D.C.’s law does not apply in federal court, there would be a circuit split on that question that might draw the attention of the Supreme Court.

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We would be remiss if we failed to note the recent passing of Anthony Lewis, long-time columnist and Supreme Court reporter for the New York Times.  Lewis died on March 25 at the age of 85.

Lewis won two Pulitzer Prizes and is the author of two of the most widely read books on Supreme Court history – “Gideon’s Trumpet,” which detailed the Court’s 1963 decision in Gideon v. Wainwright guaranteeing legal representation to criminal defendants charged with serious crimes and “Make No Law,” which described the Court’s seminal 1964 decision in New York Times v. Sullivan.  Of course, the latter case is near and dear to the heart of any journalist or media lawyer.

Our colleague, Mark J. Prak, who served as an adjunct professor at Duke University’s Law School and Sanford School of Public Policy, notes that he required his students to read “Make No Law” for some 20 years.  His comments on the book are an appropriate elegy for Lewis:

“Make No Law” is the best book about the First Amendment ever written.  Period.

If you care about the First Amendment and have not read the book, you have some homework to do.  But it will be enjoyable homework.  Several generations of lawyers and students of the First Amendment have benefitted from Lewis’ fulsome description of the people, institutions, and societal forces at play in the story that gave rise to the great case.  Lewis’ detailed account of the Court’s work in Times v. Sullivan and his description of the metamorphosis of the First Amendment throughout the history of the Court is unparalleled and, above all, a great read.

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Last week, we made our first foray into Sherrod v. Breitbart and O’Connor, which was argued in the D.C. Circuit several weeks ago and which will, hopefully, address the question whether the District of Columbia’s new anti-SLAPP statute should be applied by a federal court sitting in diversity.

In that post, we noted that the case also presented an interesting timeliness question.  In denying the defendants’ motion to dismiss brought pursuant to the D.C. anti-SLAPP statute, the district court held that the motion was not timely filed.  It is important to understand the unique timeline of this case to understand the court’s ruling.

The complaint was filed on February 11, 2011.  D.C.’s anti-SLAPP statute, which had been passed three months earlier, did not go into effect until March 31, 2011, after a mandatory review period by Congress.

Under typical circumstances, the rules require the defendants to either answer or move to dismiss the complaint within 21 days of being served.  Of course, most defendants seek, and are granted, additional time to respond to the complaint.  In this case, the defendants sought two extensions of their deadline to respond.  Both were granted by the court, with the consent of the plaintiff, pushing the defendants’ deadline to respond until April 18, 2011.

Importantly, the anti-SLAPP statute requires a defendant moving under the statute to file their motion within 45 days of service of the complaint.  In this case, 45 days fell on March 29, 2011, two days before the anti-SLAPP statute was in effect.  Thus, when the defendants did file their motion to dismiss on April 18, 2011, it was several weeks past the statutory deadline.  In denying the anti-SLAPP motion, the district court held that this was untimely, though the court did not address the fact that it had entered two orders granting the defendants extensions of their deadline to “answer, move or otherwise plead in response to Plaintiff’s Complaint.”

In their opening brief to the D.C. Circuit, the defendants argue that by granting these extensions, the court was, in effect, extending the deadline set out in the anti-SLAPP statute in addition to the deadline to respond under the Rules of Civil Procedure.  In any event, the defendants argue, the legislative history of the D.C. statute and case law from other courts indicate that litigants with pending cases can move pursuant to anti-SLAPP statutes that become effective during the course of the litigation.

In her responsive brief, the plaintiff notes that in seeking the extensions, the defendants did not notify either the plaintiff or the Court that it was seeking to extend the anti-SLAPP deadline, not just the deadline under the Rules of Civil Procedure.  Thus, the plaintiff asserts, the orders granting the extensions were not intended to extend the anti-SLAPP deadline.  This seems to be the view of the district court, as well.

No matter how the D.C. Circuit comes out on this question, this very unique case does raise an interesting practice point. It would seem that, if you are a litigant planning to take advantage of the protections of an anti-SLAPP statute, you would be well-advised to either respond within the deadlines set out in the statute or, when moving for an extension of time, specifically reference the anti-SLAPP statute to opposing counsel and the court.

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Sherrod was ousted from her job as an Agriculture Department rural-development official in 2010 after Breitbart posted an edited video of Sherrod, who is black, supposedly making racist remarks. She sued Breitbart, his employee Larry O’Connor and an unnamed defendant for defamation and emotional distress after USDA officials asked her to resign and the video ignited a racial firestorm. . . .

 

The video on Breitbart’s Web site turned out to be edited, and when Sherrod’s full speech to an NAACP group earlier that year came to light, it became clear that her remarks about an initial reluctance to help a white farmer decades ago were not racist but rather an attempt at telling a story of racial reconciliation. Sherrod received public apologies from the administration — including one from President Obama — and an offer to return to her job, which she declined.

Of course, we will keep you posted when the court issues its decision. 

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The North Carolina Supreme Court last week split 3-3 on an appeal presenting important questions concerning the state’s Public Records Act, apparently leaving it for the General Assembly to close a gap in the law concerning the applicability of the records statute to campus police departments.

The case, Ochsner v. Elon University and North Carolina Attorney General Roy Cooper, presented, among other things, the question whether the campus police department of a private university is subject to the Public Records Act, where that department was certified and authorized pursuant to state law.

The Court of Appeals answered that question in the negative, affirming the trial court’s dismissal of a complaint brought by a reporter from Elon University’s campus television news program seeking access to a complete copy of an incident report generated by the campus police when it arrested a student in March 2010.  The campus police had refused to give the reporter the full incident report, instead turning over an arrest report and the first page of the incident report.

The Public Records Act, however, specifically makes public certain information concerning police investigations, including:

(1)  The time, date, location, and nature of a violation or apparent violation of the law reported to a public law enforcement agency.

(2)  The name, sex, age, address, employment, and alleged violation of law of a person arrested, charged, or indicted.

(3)  The circumstances surrounding an arrest, including the time and place of the arrest, whether the arrest involved resistance, possession or use of weapons, or pursuit, and a description of any items seized in connection with the arrest.

            It so happens that this was exactly what the reporter requested from the campus police, a request the department refused.

In affirming the trial court’s dismissal, the Court of Appeals had held that even though state law gives police departments operated by private universities the power to arrest, the Public Records Act does not cover those departments.  The North Carolina Supreme Court agreed to hear the case, but split evenly, 3-3.  Justice Barbara Jackson had recused herself because the reporter, Nick Ochsner, had worked on her re-election campaign.  The split leaves the Court of Appeals’ decision intact but without any precedential value for future courts.

The gap in the law identified by this case appears to be the result of changes in the law surrounding the certification of campus police departments that were not carried through to the Public Records Act.  More specifically, when the statute certifying campus police departments changed in 2005, the new statutory cite was not added to the list of what constitutes a “public law enforcement agency” under the Public Records Act.

With the Supreme Court deadlocked on this issue, a legislative fix has been proposed in the General Assembly.  House Bill 142 would amend the law authorizing campus police departments to expressly make public the same information concerning police investigations that is public under the Public Records Act.

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Last week, the United States Supreme Court agreed to hear an important case involving Virginia's public records law.  The case, McBurney v. Young, involves a challenge to a provision of the state law that says that "public records shall be open to inspection and copying by any citizens of the Commonwealth . . . " (emphasis added).  In other words, citizens of another state need not apply.

A challenge to this provision limiting the availability of public records to Virginia citizens was brought by, among other plaintiffs, a citizen of Rhode Island who used to live in Virginia and had his divorce and child custody case litigated in Virginia.  When McBurney's ex-wife defaulted on her child support obligations, McBurney submitted a public records request to the state Division of Child Support Enforcement for certain documents relating to his family's case.  The department denied his request, citing, among other things, that he was not a Virginia citizen.

McBurney challenged this basis in federal court, asserting that limiting the scope of the law to Virginia citizens violated the Privileges and Immunities Clause of the U.S. Constitution. 

Meanwhile, a second plaintiff -- a California resident operating a tax assessment records business that relied on access to Virgina records -- had brought a separate case challenging the same provisions. This plaintiff also asserted a P & I claim, but added a "dormant" Commerce Clause claim, asserting that the law improperly burdened interstate commerce.

As to the P & I claims, the district court held that no fundamental right was at issue, and therefore the P & I Clause was not violated. As to the Commerce Clause, the district court denied the claim, holding that the statute does not "implicate principles of economic protectionism" and therefore is constitutional.

The United States Court of Appeals for the Fourth Circuit affirmed the district court's decision, and the plaintiffs sought Supreme Court review.

Seeking Supreme Court review is not without risk for media organizations.  After all, a ruling from the Supreme Court affirming the validity of Virginia's law might open the door to states across the country adding similar provisions to their public records laws, in hopes of limiting access.  Such a development would require out of state media organizations to ask a resident "proxy" to make a request on the organization's behalf.

We will keep you posted as the Supreme Court considers this case.

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A recent Idaho state court opinion ordering an Idaho newspaper to unmask the identity of an anyomous commenter on the newspaper's website demonstrates, among other things, the pitfalls that come with a clumsily worded retraction.

The case, Jacobson v. Doe, arose from a blog entry posted in February 2012 on the Spokesman-Review's website about Tina Jacobson, the chair of the county Republican Central Committee.  The post included a picture of Jacobson posing with then-Presidential candidate Rick Santorum and other local Republicans.  In an anonymous comment to the story, a commenter named "almostinnocentbystander" wrote: "Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina's blouse."

That comment drew requests from other commenters for additional details, which "almostinnocentbystander" provided in a follow up post, noting that Jacobson was a bookkeeper by profession and that "a whole Boat load of money is missing and Tina won't let anyone see the books."

Those comments were taken down by the author of the original blog post within a few hours, and after complaints from local Republicans and a request for the identity of the commenter, "almostinnocentbystander" posted an apology:  "I apologize for and retract my derogatory and unsubstantiated commentary regarding Tina Jacobson."

A libel suit following in April, and a subpoena was served on the newspaper asking for the identity of the commenter.  The newspaper moved to quash, claiming the commenter was a "news source" protected by the First Amendment and the Idaho Constitution.  Idaho does not have a shield statute, but state courts have recognized a qualified privilege.

The court rejected the newspaper's motion, holding that the commenter was not a "source."  Rather, the court held, the newspaper was "acting as a facilitator of commentary and administrator of the Blog."

Recognizing constitutional protections for anonymous speech, the court then analyzed what standard it should apply in deciding whether to quash the subpoena.  This is an issue we have written about often here.  In a positive move for newspapers, the court applied a three-part test, derived from the oft-cited New Jersey case Dendrite Int'l, Inc. v. Doe no. 3, 775 A.2d 756 (N.J. Super. Ct. 2001), and an unpublished Idaho federal court case. 

Under that test, the court may order disclosure if: (1) the plaintiff "makes reasonable efforts to notify the defendant" of the subpoena; (2) the plaintiff "demonstrates that it would survive a summary judgment motion"; and (3) the court must then balance the commenter's First Amendment rights with the plaintiff's case and the necessity of disclosure.  The application of the summary judgment standard at this stage is generally a win for the speaker.

In this case, though, the court held that the plaintiff had established that it could survive summary judgment. Key to this analysis was the court's holding that the retraction posted by the commenter demonstrated "actual malice," the standard of fault required for public figure plaintiffs.

In the absence of any evidence from the commenter, the court held that the commenter's "recanting shows that the speaker knew the falsity of the statement when he said it," or at least acted "recklessly by not only making the statement once, but on two occasions." 

The court's holding should be a caution to anyone considering recanting or retracting a statement because of a fear of a defamation suit.  The lesson -- it is probably best to seek legal counsel before publishing a retraction or apology.  In this case, for example, stating in the retraction that the statements were "unsubstantiated" may have been problematic.

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North Carolina Superior Court Judge Howard Manning recently ruled on the scope of protection for documents related to the highly-publicized investigation of irregularities in the University of North Carolina football program. The Court held that the majority of communications among attorneys are protected from disclosure, but that other categories of investigative documents must be disclosed as public records of a public agency. The Court also ruled that portions of former UNC football coach Butch Davis’ personal cell phone records must be disclosed.  The Court's rulings are available here and here, and a discussion of a subsequent order entered by the Court is linked here.

Background

As a general matter, the University must disclose its records as a state agency under North Carolina’s public records laws. The dispute in this case hinged on the applicability of certain exemptions from the public records laws for attorney-client privilege or protection arising from the federal law. For example, North Carolina law exempts attorney-client privileged communications and trial preparation materials from disclosure as public records. And as a matter of federal law, the Family Educational Rights and Privacy Act (FERPA) protects most student records from disclosure as public records. In this case, the parties disputed what documents related to the UNC football investigation would fall within these exemptions.

Here, the plaintiffs (media outlets including newspapers and broadcasters) sought disclosure of several categories of documents from the University in connection with the NCAA investigation into irregularities within the UNC football program. The categories included personal and business phone records, investigative documents, and information about mentors and tutors to the athletes. Ultimately, the Court allowed the production of many of these documents as public records, with a few important exceptions.

At earlier stages of the case, the Court determined that many documents are not protected by FERPA and are subject to disclosure under the public records laws. For example, the Court ruled that unredacted phone numbers on telephone bills for coaches’ cell phones provided by UNC—including phone numbers of UNC students—are not protected by FERPA and are a public record. The Court also ruled that parking tickets issued to 11 UNC football players are not education records and are not protected by FERPA. The University was required to produce those documents.

The Court’s earlier rulings also distinguished records (e.g., names, employment dates, and salaries) of tutors and mentors for UNC athletes based on whether the tutors and mentors were students themselves. Non-student tutors were treated by the Court as University personnel, and those records are not protected by FERPA. In contrast, active UNC students and graduate students that were employed as tutors or mentors for athletes are protected by FERPA. The University was not required to disclose the requested information about UNC student tutors and mentors.

Disclosure of Personal Phone Records

In perhaps the most anticipated portion of the case, the Court ruled that former UNC football coach Butch Davis was a public official and ordered him to disclose portions of his personal cell phone records. On August 22, 2012, Judge Manning signed an order requiring Davis to produce his personal cell phone records within 30 days. The order permits personal calls to be redacted from the records, but he ruled that information regarding University-related calls is a public record.

Judge Manning took care in his ruling to limit the protection for personal cell phones belonging to public officials. He observed that public officials “may not avoid public scrutiny. . . by using personal cell phones to conduct public business."

Disclosure of NCAA Materials

In a separate decision, Judge Manning determined the scope of protection for investigative and legal documents regarding the NCAA investigation into misconduct by UNC football coaches, players, agents, boosters, and tutors. The two primary categories of documents were (1) communications between UNC and its attorneys that may be privileged, and (2) documents submitted to NCAA in connection with its investigation.

Protected Communications and Preparation

In the first category of investigative documents, the Court ruled that certain broad categories of communications were protected from disclosure by attorney-client privilege, and that materials prepared in connection with the investigation were also protected from disclosure.

Under North Carolina public records law, written communications to a state agency are exempted from mandatory disclosure if they are:

made within the scope of the attorney-client relationship by any attorney-at-law serving such governmental body, concerning any claim against or on behalf of the governmental body or governmental entity for which the body acts, or concerning the prosecution, defense, settlement or litigation of any judicial action, or any administrative or other type of proceeding to which the governmental body is a party or by which it is or may be directly affected.

N.C. Gen. Stat. § 132-1.1(a). The law also exempts from disclosure “trial preparation material” that meets the following definition:

Any record, wherever located and in whatever form, that is trial preparation material within the meaning of [the North Carolina Rules of Civil Procedure], any comparable material prepared for any other legal proceeding, and any comparable material exchanged pursuant to a joint defense, joint prosecution, or joint interest agreement in connection with any pending or anticipated legal proceeding.

N.C. Gen. Stat. § 132.9.9(h)(2).

Here the Court concluded that the NCAA investigation was an administrative proceeding within the meaning of the North Carolina statutes, so attorney-client communications and trial preparation materials related to the investigation would be protected. Thus, communications from in-house UNC counsel, corporate counsel, or an outside law firm to the University are not public records and are exempt from disclosure. Similarly, communications from in-house UNC counsel to outside counsel are privileged and are exempt from disclosure. Communications prepared by UNC staff at the direction of in-house or outside counsel for submission to in-house or outside counsel in connection with the investigation are “trial preparation” materials and also exempt from disclosure. As a result of the Court’s findings, copies of recordings of interviews prepared in connection with the investigation will not be required to be disclosed.

Disclosure of Documents Submitted To The NCAA

Next, the Court considered whether documents submitted by the University to the NCAA in response to its investigation were protected from disclosure. The parties agreed that student-athlete information relating to academics are protected by FERPA and would not be disclosed. The parties disputed disclosure of information relating to the NCAA investigation into impermissible benefits to student athletes such as plane tickets, jewelry, clothing, shoes, automobiles, payments to cover parking tickets, monetary gifts, free meals, and so on.

The Court determined that such benefits are not academic and fall outside the scope of FERPA. Thus, the Court ruled that documents relating to investigations into impermissible benefits only (and not academic conduct) must be disclosed. This category of documents includes statements of fact submitted by UNC to the NCAA in the course of an investigation, reinstatement requests on behalf of a particular athlete submitted by UNC to the NCAA, and similar documents relating to a player subjected to penalties or sanctions by the NCAA for non-academic misconduct.

Importantly, the University does not have to disclose the materials unless the investigation resulted in penalties or sanctions. Documents relating to an investigation that did not result in the player being declared ineligible or subjected to other sanctions by the NCAA for an impermissible benefits rules violation are not required to be disclosed.

Judge Manning was careful to emphasize that “information relating to truly academic issues pertaining to student-athlete academic misbehavior. . . is protected from disclosure by FERPA.” So, documents relating to investigations on the basis of academic performance issues such as low GPA, academic courses, etc., are protected by FERPA as academic records and are not required to be disclosed.

On a related issue, the Court also determined the scope of protection for the University’s formal response to the NCAA (a large document dated September 29, 2011, with exhibits). The University previously released a heavily redacted version of the response. Judge Manning ruled that redactions in the public version of the document were appropriate to protect employees and academic student records. However, portions of the response relating to impermissible benefit violations resulting in sanctions and ineligibility are not protected and must be disclosed in unredacted form. In the Court’s words, “the cloak of secrecy must be lifted and the sun let in for all to see.”
 

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Today, the U.S. Court of Appeals for the Second Circuit ruled in favor of broadcasters and content owners against the streaming service ivi, which previously captured and retransmitted broadcast programming over the Internet. The Second Circuit held that ivi is not a cable system and therefore is not entitled to the cable statutory copyright license under Section 111 of the Copyright Act.

Broadcasters initiated the lawsuit alleging that ivi violated the Copyright Act by streaming broadcast programming live over the Internet without consent. ivi argued that it was an online cable operator that pays royalties in exchange for the legal right to retransmit broadcast programming under a statutory copyright license. In its decision released today, the Second Circuit agreed with the Copyright Office’s interpretation that Internet retransmission services such as ivi do not constitute cable systems entitled to the statutory copyright license. This decision affirms the district court’s grant of a preliminary injunction, which shut down ivi’s streaming service last year.
 

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